from the this-could-be-big dept

One of the many problems with DRM is its blanket nature. As well as locking down the work in question, it often causes all kinds of other, perfectly legal activities to be blocked as well -- something that the copyright industry seems quite untroubled by. Here's an example from Europe involving Nintendo (pdf):

Nintendo markets two types of systems for videogames: 'DS' portable consoles and 'Wii' fixed consoles. It installs a recognition system in the consoles, and an encrypted code on the physical housing system of videogames, which has the effect of preventing the use of illegal copies of videogames. Those technological protection [DRM] measures prevent games without a code from being launched on Nintendo equipment and prevent programs, games and more generally, multimedia content other than Nintendo's, from being used on the consoles.

That means that DRM is preventing users from accessing non-Nintendo games and other works that they have lawfully acquired. One company affected by this is PC Box, which sells "homebrews" -- applications from independent manufacturers -- the use of which requires the installation of software that circumvents Nintendo's DRM. As was to be expected, Nintendo is not happy about that, and so the Milan District Court has been asked to adjudicate:

Nintendo considers that PC Box equipment seeks principally to circumvent the technological protection measures of its games.
PC Box considers that Nintendo's purpose is to prevent use of independent software intended to enable movies, videos and MP3 files to be read on
the consoles, although that software does not constitute an illegal copy of videogames.

Aware that this raised an important question of law, the Milan judges asked the Court of Justice of the European Union, the EU's highest court, to clarify how the European Directive on the harmonization of copyright applied in this case. The judgment has just been handed down; here's the key part:

The Court of Justice next states that the legal protection covers only the technological measures intended to prevent or eliminate
unauthorised acts of reproduction, communication, public offer or distribution, for which authorisation from the copyrightholder is required. That legal protection must respect the principle of proportionality without prohibiting devices or activities which have a commercially significant purpose or use
other than to circumvent the technical protection for unlawful purposes.

The Court of Justice notes that the scope of legal protection of technical measures must not be assessed according to the use of consoles defined by the holder of copyright, but that rather it is necessary to examine the purpose of devices provided for the circumvention of protection measures,
taking account, according to the circumstances at issue, of the use which third parties actually make of them.

Having made those important general points, the Court of Justice of the European Union then goes on to instruct the Milan court to consider specific issues, such as whether Nintendo could use alternative forms of DRM that allow other programs to be run, and whether PC Box's software is mainly used for legal or illegal purposes.

As well as being an eminently sensible ruling, it's potentially hugely important, because it establishes that in principle DRM may be circumvented, depending on the circumstances. It's one that is likely to be greeted with howls from the copyright industry, since it cuts right across its view that DRM is sacred, and can never be circumvented in any situation. It's refreshing to see Europe's top court adopting a more nuanced approach to copyright that recognizes that users have important rights too, and that they should not be obliged to put up with what copyrightholders impose upon them if that is disproportionate in its knock-on effects.

from the customers-win dept

So, remember when the Xbox One release confused the hell out of everyone and then Microsoft confirmed a bunch of hated, needless restrictions on used games and internet connection requirements? Then there was that whole thing at E3 where the crux of Sony's presentation was, "Hey, at least we're not Microsoft?" The backlash, as you can imagine was immensely fierce, with pissed off gamers who know inherently how important the used game market is and how stupid and insulting online requirements are.

Well, Microsoft apparently now knows it too, as they have done a serious about-face on nearly every single one of these plans. Xbox chief Don Mattrick stated on the Xbox blog:

"An internet connection will not be required to play offline Xbox One games – After a one-time system set-up with a new Xbox One, you can play any disc based game without ever connecting online again. There is no 24 hour connection requirement and you can take your Xbox One anywhere you want and play your games, just like on Xbox 360.

Trade-in, lend, resell, gift, and rent disc based games just like you do today – There will be no limitations to using and sharing games, it will work just as it does today on Xbox 360."

So, all's well that ends well, right? Fans pushed back and Microsoft listened. Well, perhaps not. When you consider that the chief reason for the backlash was the obvious nature of restrictiveness and money-grabbing in Microsoft's plans, I expect gamers to not be assuaged by those plans being walked back in the aftermath. The company has made it quite clear what they think of their customers and where their priorities lie. Many jilted people won't be fooled by this new conciliatory tone.

There is a lesson to be learned here about how a company should treat its customers. Customers meaning the gamers, not the game publishers Microsoft seemed so focused on. I don't believe they have wiped the chalkboard clean without stain with this announcement.

from the no-connection-required dept

It has been no secret that Microsoft's handling of the launch of their Xbox One console has been controversial at best and a complete debacle at worst. As rumors of mandatory internet connections and fees for playing used games made the unsteady transition to reality, dedicated fans of other consoles mobilized to make sure their voices were heard. Most substantial was the fanbase of the Sony Playstation, who made their wishes for a more traditional and open PS4 known. I had mentioned in that post that Sony in particular had a real opportunity on their hands, assuming they were willing to both stick up for their customers and take the issues against Microsoft head-on.

During their Electronic Entertainment Expo press event, Sony Computer Entertainment of America president and CEO Jack Tretton says its PS4 will not restrict used games, nor will it require an online connection.

Tretton specifically noted the PS4 "won't stop working if you haven't authenticated within 24 hours," a jab at the Xbox One and its requirement to perform online checks of consoles.

Now, to be sure, this isn't a completely unambiguous stance in favor of its customers, but credit Sony for doing what many of our commenters thought they wouldn't: seeing an opportunity in sticking up for customers and running with it. Having said that, there are still many questions surrounding whether or not the Playstation platform will simply be agnostic with used games, leaving that decision instead up to the game developers and publishers. It might seem a better thing for Sony to simply say they won't allow the kind of used game pocket-picking that MIcrosoft is codifying, but that might be a bit too much to ask. After all, Sony needs developers for their platform, too. Besides, as long as it isn't Sony acting in an anti-consumer way, developers that might wish to be restrictive on used games can be judged on their own individual merits. In other words, we'll actually get to see what the market impact of anti-consumer behavior on used games is.

And if some of the reaction I've seen thus far is any indication, such as Sony Entertainment now being listed on Wikipedia's list of "burn centers in the United States" after they torched Microsoft at E3, developers might begin rethinking their plans.

from the for-starters,-one's-an-imposition dept

Game publishers and console manufacturers have been feeling some intensified heat from customers about "always on" requirements. (SimCity, anyone?) Microsoft has been battling rumours that the new Xbox will need an internet connection to function, an issue greatly magnified by some unfortunate tweets by its (former) Creative Director.

Ubisoft has played the villain quite frequently in recent years, lacing its single player games with DRM requiring (at minimum) an initial internet connection at bootup. The CEO of Ubisoft Montreal (Yannis Mallat) seems to be perfectly fine with "always online" next gen consoles, stating simply, "I would say that a lot of people are already always online through other devices. I would suspect the audience is ready."

It almost seems like a logical statement, but Mallat is making some huge assumptions about what the public is "ready" for. A console that won't do anything without (at the very least) phoning home isn't one of them, as indie game developer Rob Fearon (a.k.a. Rob Remakes -- creator of DRM, a game with absolutely no DRM) points out in his rather devastating response post.

Look, we really need to start making the difference clear here. Lots of people are always connectible through other devices not always online. My iThing is always connectible, my computer is always connectible, my Xbox360 is always connectible. None are always online. Neither do they require me to be online to be functional.

Those pushing for this sort of "innovation" continually point to the fact that many people spend a great deal of time on the internet as an indication that the public is dying to purchase a console that requires an always-on connection, even though no console has ever required that in the past. If this half-assed assumption/analogy fails to do the job, they trot out several others. Rob has answers for each and every one of these industry-tropes-in-the-making.

"Steam requires an internet connection."

Even Steam which is for the most part like a rock, that falls on its arse occasionally. Thing is, if Steam falls on its arse occasionally then that’s OK because I don’t need to be connected most of the time providing I’ve got a nice offline mode to rely on.

"Your phone always needs to be 'connected.'"

My phone is always on, yeah. And there’s loads of times where I can’t use my phone because the signal drops, the phone goes a bit bonkers for some reason, I’m in a lead lined shed like I think our local Asda is or something. I dunno. Thing is, my one big “always on” device has more time where I can’t use it than anything else I own. This is something to aspire to? Something that’s not always functional like my phone?

"Cable/DSL? That flows right into your house like water from a tap you can't shut off, right?"

Always on, except when it isn't. No one has 100% uptime. No one. Even the services behind these consoles, like Xbox Live, experience downtime. What then? A console that needs to connect to play a game is effectively shut down because the underlying platform is undergoing routine maintenance/hacking.

There's no comparison that results in 100% uptime, or any percentage that's going to satisfy someone who's just shelled out $500 for a paperweight that contains all the hardware and software to play games but simply won't unless something on the other end gives the thumbs up.

I’m not really convinced I want a console that’s as always on as my phone is. I’m not really convinced I want a console that’s as always on as my cable is. Because I want to just be able to play my console. I don’t want to buy into something that has less uptime than what I already have, I don’t want to buy something less likely to let me play when I want.

This is what people are worried about and this is why they're irate. If a console manufacturer decides to add this requirement to its hardware, it will be going against the wishes of its customers solely to satisfy its own agenda(s). That agenda may be to push its online services harder. That agenda may be to reduce piracy. That agenda may be to cut out the secondhand market. All of these agendas cater to the desires of the manufacture. They do absolutely nothing for the end users.

Ubisoft's CEO thinks the audience is ready. It's a bullshit statement. Certain game developers and console manufacturers might be, but the audience certainly isn't. But it's more than a self-serving bit of PR speak. It's a statement of intent.

[W]hen someone says “we think the audience is ready” you can read that as “we’re doing it anyway” really.

Keep that in mind when you hear statements from developers and console manufacturers about the public's apparently secret love for always-connected devices. Their "read" on the market is nothing more than them signalling a desire to put the customers' desires dead last.

from the no-more-defaming-gaming dept

Due to recent events and blame-shifting attempts by certain lobbying groups, video games are once again in the crosshairs here in America. It's unclear to me as of yet whether or not this will amount to a heavy dose of grandstanding noise and then die off, or if any of the crackpot proposals surrounding games will actually be enacted. The studies linking gaming with all manner of negative impacts are, at best, all over the place. Proponents of legislation will often claim that since there is no evidence that games don't harm youths, a proactive approach is the sensible one. Those on my side of the debate, i.e. people that prefer logic to grandstanding, prefer to suggest that it is incumbent upon those affirming a stance to provide evidence for it, as opposed to asking others to disprove a link that likely doesn't exist. In any case, whether you think legislation against games is warranted or not, one needs only to look to China's mainland to see what effect such legislation might have.

That's because China banned console gaming a decade ago. Due to a fear of harming the physical and mental growth of Chinese children, the government banned the manufacture, sale or import of all gaming consoles. The results are about what you'd expect, which is to say that there are all kinds of gaming consoles in the Chinese market, except they're either smuggled in or they're simply called something else in marketing material to get around the ban.

Beijing Eedoo successfully launched a multimedia entertainment console in the mainland market in April last year. But the company has changed the product name several times in order to avoid sensitive issues.

Jack Luo, chief executive officer of Beijing Eedoo, insisted his company is selling a "sports and entertainment machine", rather than a game console, to Chinese families.

That's certainly one laughably transparent way to do it, I suppose. The other is to sell pirated games along with smuggled systems, which a select number of Chinese businesses do. With so little competition, the margins are extreme. They love the ban on consoles. Unfortunately for those engaged in selling these black market consoles, the Chinese government appears to be waking up to the uselessness of their law and is said to be considering lifting the ban entirely.

Rumors have circulated in the Chinese media that some international companies have already sensed the government's changing attitude. They hope to figure out the Chinese authorities' intentions so they can make a rapid response, analysts said.

Sony Computer Entertainment (SCE), a subsidiary responsible for Sony's PlayStation business, set up a branch in South China's Guangdong province in June last year. The Guangdong branch will conduct training and research and development work for Sony.

Microsoft introduced its Kinect, a controller-free game console, to the Chinese mainland in October last year. However, Zhang Yaqin, chairman of Microsoft Corp's Asia-Pacific Research and Development Group, said Kinect is not used for games in China but for other purposes, such as medical treatment and education.

This, of course, would be a boon to console-makers around the world, providing them a massive market and freeing them from pretending their console devices are chiefly a medical or educational device. More importantly, there's a lesson here for Americans. Laws limiting speech and entertainment that go against the wishes of the public not only don't work, they encourage illegal profiteering of those same laws. If a totalitarian regime like China can figure this out, I'd like to think our grandstanding legislators can as well.

from the so-you-get-GTA42-instead,-jerks dept

I'll admit that video game producer Electronic Arts confuses me quite often. Any company their size is going to suffer from some internal conflicting opinions, but as an organization EA sometimes comes off as suffering from multiple personality disorder. One personality says that sales pricing on games is horrific, while the other embraces free games. They've shown that they can use trademark law well, but then manage to swallow a crazy pill when it comes to recognizing how an endless stream of sequels hurts their business. That last link is from 2007, when the boss of EA at the time admitted that pumping out sequels instead of original titles was having a negative effect on the bottom line. It seems that in five short years, the new brass at EA forgot that admission.

Speaking with Games Industry, current President of EA's labels, Frank Gibeau, discusses the chaos of the marketplace and the golden era of gaming he believes is going to come out of it. I'll admit, there's some very encouraging stuff in the piece, between once again acknowledging the emerging success of new business models, free to play games, and the power of the internet to massively expand the marketplace for gaming as a whole. That's all good thinking. But then we get to where he discusses EA's intellectual property strategy.

"The time to launch an IP is at the front-end of the hardware cycle, and if you look historically the majority of new IPS are introduced within the first 24 months of each cycle of hardware platforms," Gibeau says. "Right now, we're working on 3 to 5 new IPs for the next gen, and in this cycle we've been directing our innovation into existing franchises.

"As much as there's a desire for new IP, the market doesn't reward new IP this late in the cycle; they end up doing okay, but not really breaking through."

In case you don't want to parse through the exec speak, let me break this down for you. EA is actively working on new, original franchises, but they won't release them until the next generation of consoles comes out. This is under the notion that new franchises released in the middle or late stages of a console's life are doomed to failure or mediocrity. There are examples of why that outlook shouldn't be taken as gospel: Pokemon (released 7 years into the original Game Boy's life), Grand Theft Auto (released roughly 4 years into the original Playstation's life cycle), Gran Turismo (released roughly 3 years into the original Plastation's life cycle), or Guitar Hero (released roughly 5 years into the PS2's life cycle). All of those titles, by the way, are among the best selling franchises of all time. The point is that if you match the desire for new titles that Gibeau acknowledges with great game franchises, you build huge sales.

But even if Gibeau's supposition was true, there is a problem: the console life cycle this go around is longer than previous generations. While rumors about the next generation of gaming consoles surfaced way back in 2010, everyone's best guess for the soonest release is sometime in 2013 (and by "sometime", they mean Christmas at best). The XBOX 360 and PS3 came out in 2005 and 2006 respectively, which puts us somewhere in the neighborhood of a seven or eight year gap between console releases, depending on who gets to market first. Wii consoles are in roughly the same boat.

Console generation jump between the Genesis/SNES to Playstation/N64: 5 years

Console generation jump between the Playstation to PS2/Xbox: 5 years

Console generation jump between the PS2/XBOX to PS3/XBox 360: 4 years for Xbox, 5 years for Playstation

The point is that the strategy is going to have to change with what is looking like something between 1.5 and 2 times the life cycle of the console. Customers simply aren't going to buy sequels for longer periods of time and if EA doesn't want to fill their need for new titles, someone else will. And, despite his earlier words, even Gibeau hints that he recognizes this.

"This is the longest cycle that any of us have ever seen, and we're at the point where a little bit of fatigue has set in, and people are wondering what they can possibly do next. I've seen the machines that we're building games for, and they're spectacular."

But then he goes right back to discussing how balls-droppingly great the next generation of hardware is going to be and how that's where they'll focus.

"Gen 4 hardware is a huge opportunity, and it's going to lead to a huge growth spurt for the industry."

Once again, it seems like they have multiple personality disorder. In the meantime, perhaps actually developing new material for the consoles your fans will have to deal with for the next couple of years yet might do wonders to turn around that sliding stock price.

from the can't-hold-back-progress dept

We've talked in the past about the differences between open and closed platforms in driving innovation and adoption. Unlike some, I'm not against inherently closed platforms. I just don't think that they will survive long-term. In fact, I think that closed platforms often do a very good job of defining initial markets, and convincing people to leap into those markets. However, in the long term, it usually seems that the open platforms, which may start out a lot less polished and useful, not only catch up, but surpass the closed platforms. It's not difficult to understand why this happens. When you have a closed platform, the company putting it out has to account for everything -- and thus, initially, it's a lot more advanced and well thought out. However, with an open platform, the initial offering is often chaotic and messy and difficult for new users to understand and adopt. But over time, with many more people able to work on that platform and to innovate on that platform, it gets better and better and better. And it becomes more difficult for the closed platforms to catch up.

Does this always happen? No. But it's happened enough that you have to have a good reason for why it won't happen in any particular market. Of course, one of the examples that people have used for where this has not happened is in the video game market. There, it's the closed platforms -- PS3, Xbox and the Wii -- that have continued to dominate, while the more open PC platform has languished in comparison. There could be a variety of reasons for this -- including the fact that there is a fair bit of competition between the three platforms and the fact that no one has really built a credible open competitor (the PC may be too general purpose). But, apparently, some still think the era of the closed video gaming console is unlikely to last much longer -- and at least one prognosticator is certainly someone who knows the business quite well.

Hideo Kojima, the creator of Metal Gear Solid surprised a lot of people by saying that the video game console is dying, and the future is a much more open solution, that involves games that you can play on any device: computer, mobile, TV, etc.

"In the near future, we'll have games that don't depend on any platform," Kojima said at a news conference announcing the latest installment in a game saga that began in 1987.

"Gamers should be able to take the experience with them in their living rooms, on the go, when they travel -- wherever they are and whenever they want to play. It should be the same software and the same experience," he said.

Who knows if this is true or not, but it would certainly fit the pattern we've seen elsewhere...